The opinion
of the court was delivered by: Richard S. Arnold, Circuit Judge.

On Appeal
from the United States District Court for the District of Minnesota.

Submitted:
February 14, 2001

Decided: August 3, 2001

This case
arises under the Individuals With Disabilities Education Act (IDEA),
20 U.S.C. §§ 1400-1487 (1994) (amended 1997). A state hearing
officer ordered the appellant, Independent School District No. 284 ("the
District"), to pay the costs of a residential education and treatment
program for A.C., a student with a variety of emotional and behavioral
problems. The District brought this action in federal district court
pursuant to 20 U.S.C. § 1415(i)(2), and obtained a ruling that
the residential placement was not educationally necessary. A.C. appeals,
and we reverse.

I.

When A.C.
moved into the District, she was 15 years old. Her previous school district
had provided her with special-education services for emotional and behavioral
disorders and had developed an Individualized Education Program (IEP)
which assigned her to a special, "self-contained" classroom.
A.C.'s school-related problems included classroom disruption, profanity,
insubordination, and truancy. School officials in her old district had
tried to deal with these problems by allowing her to take her classes
at an off-campus day center for troubled kids. That didn't work: she
would either leave the center or not show up at all. Outside of school,
she used alcohol and illegal drugs, was sexually promiscuous, repeatedly
ran away from home, was thought to have forged checks, and was hospitalized
three times for threatening or attempting suicide. Her mother, C.C.,
tried to get the county social services department to pay for a residential
treatment program. The county offered placement in a juvenile correctional
facility, which C.C. declined. After that, C.C. stopped telling the
county about A.C.'s absences from home. C.C. also tried, unsuccessfully,
to obtain a court order placing A.C. in a non-correctional residential
treatment center.

When District
No. 284 first took on the responsibility of educating A.C., it tried
to implement the IEP from her old district. It placed her in one of
two self-contained classrooms for students with emotional and behavioral
problems. On her third day of attendance, A.C. was suspended for behaving
inappropriately, cursing, and disobeying a school authority. The school
returned A.C. to the self-contained classroom while it reviewed her
placement. After a few days, she stopped coming to class. Meanwhile,
C.C. resumed trying to obtain a court-ordered residential placement.
A.C.'s current high school's social worker, her previous school's staff
psychologist, and her IEP manager wrote letters to the court. All three
agreed that A.C.'s behavior was interfering with her academic progress.
The psychologist and the IEP manager also noted that past educational
strategies had been ineffective, and said that A.C. needed a highly
structured program that would address her behavioral and psychological
problems. The court refused to order a residential placement. Instead,
it ordered A.C. to attend school, an order with which she did not comply.

C.C. continued
to pursue a residential placement. She had several meetings with A.C.'s
IEP team and provided the District with the information presented to
the juvenile court. As an interim measure, the District provided homebound
instruction services, of which A.C. made sporadic use. For the longer
term, the District said that it would either return A.C. to the self-contained
classroom or enroll her in a day treatment program on the campus of
the University of Minnesota, to which she could travel by city bus.
C.C. was not satisfied with these choices. She asked that A.C. be enrolled
at Rocky Mountain Academy (RMA), a residential treatment center in Idaho,
at District expense. The District agreed to pay the "educational"
costs of this placement, but not costs related to therapy or lodging.
In monetary terms, that meant the District would pay a little more than
one third of the $55,000 annual attendance charge for RMA.

With negotiations
at an impasse, the District agreed to an Independent Educational Evaluation
(IEE) of A.C. by a neuropsychologist on the faculty of the University
of Minnesota. The evaluator found no major attention problems, hyperactivity,
learning disabilities, deficiencies of intelligence or memory, or the
like. Instead, she traced A.C.'s educational problems to "psychological
difficulties" such as her "oppositionality, manipulative tendencies,
and strong need for control and attention." On the basis of these
observations, A.C. was diagnosed with "conduct disorder,"
but the evaluator explained in her deposition that this diagnostic category
was used mainly because the patient was still too young to be diagnosed
with a personality disorder. She said that a diagnosis of antisocial
or narcissistic personality disorder would probably be appropriate when
A.C. reaches the age at which those categories are applied. The evaluator
strongly recommended that A.C. be placed in a secure facility, largely
to prevent truancy, and predicted that, after a course of treatment,
A.C. would probably be able to return to the classroom. According to
findings in the administrative record, the evaluator considered a day
treatment placement, and does not believe it will be effective as the
Student will not attend. While a day treatment facility could provide
educational services, the services would be ineffective . . . due to
the nature and extent of her emotional and behavioral disorder.

Findings
of Fact, Conclusions, and Decision of Independent Hearing Officer (hereafter
IHO Decision) at 11. The state review officer found that the "IEE
Evaluator concluded unequivocally that it is necessary for Student to
be in a secure residential treatment facility in order for Student to
gain educational benefit." Findings of Fact, Conclusions of Law,
and Decision of Hearing Review Officer (hereafter HRO Decision) at 9.
The private psychologist who has been treating A.C. since 1996 believes
that she exhibits borderline personality development and may have dysthymia,
a form of depression.

The
controversy next went to an administrative hearing in the Minnesota
Department of Children, Families, and Learning. The Independent Hearing
Officer ordered the District to provide 100 hours of compensatory education
and to convene an IEP meeting for the purpose of "locat[ing] an
appropriate residential placement to meet the Students [sic] emotional,
behavioral and educational needs." IHO Decision at 21. The Hearing
Review Officer affirmed. The District then commenced this action, as
permitted by 20 U.S.C. § 1415(i)(2)(A). The District Court affirmed
the award of compensatory education, a decision from which the District
does not appeal. As to the residential placement, the District Court
reversed. It noted that the IEE evaluator had testified that the day
program proposed in the District's IEP " 'would educationally meet
her needs, . . . from the standpoint of the individualized kind of work
that she needs to meet her educational needs.' " Order at 5, quoting
Hearing Transcript at 621. Because the Court found nothing in the record
to suggest that A.C.'s behavioral problems rendered her unable to attend
the day program, it concluded that a residential placement was not necessary
to address her educational needs.

II.

The
IDEA "was intended to ensure that children with disabilities receive
an education that is both appropriate and free." Florence
County School District 4 v. Carter,
510 U.S. 7, 13 (1993). As defined in the Act, 20 U.S.C. § 1401(8),
a "free appropriate public education" includes both instruction,
which must be specially designed to suit the needs of the disabled child,
see 20 U.S.C. § 1401(25), and "related services," including
"such developmental, corrective, and other supportive services
. . . as may be required to assist a child with a disability to benefit
from special education." 20 U.S.C. § 1401(22). It is undisputed
that A.C. is a "child with a disability" within the meaning
of 20 U.S.C. § 1401(3)(A).

a
court's inquiry in suits brought under [§ 1415(i)(2)] is twofold.
First, has the State complied with the procedures set forth in the Act?
And second, is the individualized educational program developed through
the Act's procedures reasonably calculated to enable the child to receive
educational benefits? If these requirements are met, the State has complied
with the obligations imposed by Congress and the courts can require
no more. Id. at 206-07 (footnotes omitted).

The
parties do not dispute that the procedural requirements of the IDEA were
met here. The question before us, therefore, is whether the District's
IEP is reasonably calculated to provide A.C. with educational benefits.

This is a mixed question of law and fact, which we review de novo. Strawn
v. Missouri State Board of Educ., 210 F.3d 954, 958 (8th Cir. 2000).

That our
review of the District Court is de novo does not mean that we write
on an entirely clean slate. We must afford "due weight" to
the outcome of the state administrative proceedings, giving particular
consideration to state officials' educational judgments. Rowley,
458 U.S. at 206; see also Strawn, 210 F.3d at 958; E.S. v.
Independent School District No. 196, 135 F.3d 566, 569 (8th Cir.
1998) (a reviewing court should "resist[] any impulse to 'substitute
[its] own notions of sound educational policy for those of the school
authorities' ") (quoting Rowley, 458 U.S. at 206). In some
cases, however, a court may have good legal reasons for rejecting a
state's decision. For example, the IDEA expresses the will of Congress
that disabled students be educated with non-disabled students "[t]o
the maximum extent appropriate." 20 U.S.C. § 1412(5)(A). We
have reversed a state decision concerning an IEP where no educational
reasons were given for placing a disabled child in a separate learning
environment. See Independent School District No. 283 v. S.D.,
88 F.3d 556, 561-62 (8th Cir. 1996) (district court correctly reversed
hearing review officer's separate placement, where both the school district
and the first-tier state hearing officer judged a mainstream placement
appropriate, and the review officer gave no educational reason for disagreeing
with them).

Despite
the statutory preference for mainstream placements, the IDEA recognizes
that some disabled students need full-time care in order to receive
educational benefit. It defines "special education" to include
"instruction conducted . . . in hospitals and institutions,"
20 U.S.C. § 1401(25); cf. 34 C.F.R. 300.26 (2000). Regulations
promulgated under the statute by the United States Department of Education
require that, "[i]f placement in a public or private residential
program is necessary to provide special education and related services
to a child with a disability, the program, including non-medical care
and room and board, must be at no cost to the parents of the child."
34 C.F.R. § 300.302 (2000). The reason for this rule is straightforward:
if a residential placement is educationally necessary because of a student's
disability, and the state does not provide it, then the state's IEP
is not "reasonably calculated to enable the child to receive educational
benefits" as required by Rowley. Thus, the IDEA requires
that a state pay for a disabled student's residential placement if the
student, because of his or her disability, cannot reasonably be anticipated
to benefit from instruction without such a placement. See Mrs. B.
v. Milford Board of Ed., 103 F.3d 1114, 1122 (2d Cir. 1997) (asking
"whether the child requires the residential program to receive
educational benefit"); McKenzie v. Smith, 771 F.2d 1527,
1534 (D.C. Cir. 1985) (asking " 'whether full-time placement may
be considered necessary for educational purposes, or whether the residential
placement is a response to medical, social or emotional problems that
are segregable from the learning process.' ") (quoting Kruelle
v. New Castle County School Dist., 642 F.2d 687, 693 (3d Cir. 1981)).

III.

The District
first argues that the case is moot, because A.C. has apparently moved
to another district and has conceded that the District is not responsible
for prospective relief. In Thompson v. Bd. of the Special School
Dist. No. 1, 144 F.3d 574, 579 (8th Cir. 1998), we held that a student's
IDEA claim was moot because his old district was not responsible for
providing him a due-process hearing, which he requested only after he
had left the district to attend another school. Here, however, A.C.'s
due-process hearing is over. A.C.'s claim in this case concerns obligations
the District allegedly had in the past and failed to meet. The remedy
sought is compensatory. It does not matter whether the District has
any present or future obligation to develop a new IEP for her or to
give her further hearings. If A.C. or her mother had paid the costs
of a private placement at the time, and then sued the District for reimbursement,
the claim would not be moot. See Zobrest v. Catalina Foothills School
Dist., 509 U.S. 1, 4 n.3 (1993). We think that the same result should
obtain here. In either case, the claim is that the statute obligated
the school district to pay for the placement during the time when it
was responsible for the student's education. Assuming that A.C.'s claim
has merit, it would not make sense to deny her a remedy against the
District just because her parent did not or could not pay for the placement
that the District denied her.

We therefore
turn to the merits. The District Court held that

the record . . . makes it clear that residential placement is necessary
only to treat Plaintiff's social and emotional problems, not for educational
purposes. . . . Student's problems, and the risks to which she is exposed,
are social and emotional in nature. In fact, the IEE Evaluator specifically
noted that Student has no neurological deficits which interfere with
her learning and is of average intelligence, with no symptoms of ADD
or ADHD, and found that day treatment would meet Plaintiff's educational
needs. [Citation omitted.] While one manifestation of A.C.'s emotional
behavioral disorder is her unwillingness to attend school or comply
with the requirements of ISD 284's IEP, there is nothing in the record
to support a conclusion that there is anything about A.C.'s disorder
which renders her unable to attend school or unable to comply with the
IEP.

Order
of Magistrate Judge at 10. There is much in this assessment with which
we agree. Certainly no one disputes that A.C. has social and emotional
problems, and the record would not support a finding that she has learning
disabilities. We also think it unlikely that Congress meant for the IDEA
to require states to provide a home away from home for students who simply
make bad choices, even if those choices cause them to fail in school.
See, e.g., Springer v. Fairfax County School Bd., 134 F.3d 659,
664 (4th Cir. 1998) (holding that student diagnosed with "conduct
disorder" did not have an emotional disturbance but was merely "socially
maladjusted" under the precursor to 34 C.F.R. § 300.7(c)(4)(ii)
(2000)).

We do not believe, however, that the analysis can be limited to a stark
distinction between unwillingness and inability to behave appropriately.
There is a grey area between normal, voluntary conduct and involuntary
physiological response, and that area is where Congress has chosen to
locate behavioral problems such as A.C.'s. The IDEA clearly includes
"emotional disturbance[s]" as disabilities. 20 U.S.C. §
1401(3)(A). According to the Department of Education, an emotional disturbance
is

[A] condition exhibiting one or more of the following characteristics
over a long period of time and to a marked degree that adversely affects
a child's educational performance:

(A)
An inability to learn that cannot be explained by intellectual, sensory,
or health factors.

(B)
An inability to build or maintain satisfactory interpersonal relationships
with peers and teachers.

(C)
Inappropriate types of behavior or feelings under normal circumstances.

(D)
A general pervasive mood of unhappiness or depression.

(E)
A tendency to develop physical symptoms or fears associated with personal
or school problems. 34 C.F.R. § 300.7(c)(4)(i).

Read naturally and as a whole, the law and the regulations identify a
class of children who are disabled only in the sense that their abnormal
emotional conditions prevent them from choosing normal responses to normal
situations. See Honig, California Superintendent of Public Instruction
v. Doe, 484 U.S. 305, 320 (1988) (stating, of an emotionally disturbed
student, that "[i]t is [the student's] very inability to conform
his conduct to socially acceptable norms that renders him 'handicapped'
within the meaning of the EHA").

Consistently with this reading, a child whose disabling condition manifests
itself in disruptive conduct is exempted, to a degree, from normal disciplinary
procedures.

While Education
Department regulations do permit children with disabilities to be suspended
from school under some circumstances, see 34 C.F.R. § 300.520(a)(1),
the Department also instructs schools that suspension or expulsion is
not normally appropriate as a first-line response to behavior problems
resulting from a student's disability, even if the conduct in question
violates school rules. See 34
C.F.R. Part 300, App. A, Individualized Education Programs (IEPs) and
Other Selected Implementation Issues, VI.38 (2000). Instead,
the student's IEP team should address the behavior in the first instance,
using suspension and other disciplinary measures only if appropriate
in the context of the IEP. Id. This does not mean that the IDEA has
obliterated the concept of personal responsibility, or that children
with disabilities cannot be punished for simple misbehavior. It merely
reflects the Department's judgment that sometimes, with certain children,
what looks like simple misbehavior is actually a more complicated problem
whose remedy should be integrated into the child's overall program of
special education.

The preponderance
of the evidence in the record before us supports the state's conclusion
that A.C.'s truancy and classroom disruption belong in this category.
Although the IEE evaluator reported that A.C. "does not have any
significant neurocognitive impairment," Summary of Evaluation at
6, cf. Hearing Transcript at 623, she also found A.C. to be "very
impaired" with respect to her disabling condition, and even repeated
the phrase for emphasis. Hearing Transcript at 653. Asked to clarify,
she said that the latter finding related to "[A.C.'s] conduct disorder
and her total functional impairment. . . . [H]er ability to operate
on a day-to-day basis is impaired. She is not impaired cognitively."
Id. at 662. Both the IEE evaluator and A.C.'s treating psychologist
regard her lack of self-control as a settled disorder traceable to early
experiences. See Summary of Evaluation at 3-4 (noting that A.C.'s treating
psychologist "feels that [A.C.] has suffered significant trauma,"
stating that "[i]t is clear from the interviews with [A.C.] and
her mother that [A.C.] has experienced a significant emotional turmoil
and that this has had a profound effect on her personality development,"
and tracing A.C.'s excessive need for control to her " 'parental'
experiences as a young child"). Perhaps these facts do not show
that A.C. is irresistibly compelled to cut school, but they do tend
to show that her truancy and defiance of authority result from a genuine
emotional disturbance rather than from a purely moral failing. The school
district, which has the burden of proof here, see E.S., 135 F.3d at
569, has presented no evidence to the contrary.

The District
Court accurately described A.C.'s problems as "social and emotional
in nature," and concluded from this that they were "separable
from the learning process." Order of Magistrate Judge at 9-10.
That conclusion does not follow. Apart from other reasons, the mere
fact that Congress regards emotional disturbances as disabilities entitling
a child to special education shows that, at least in Congress's judgment,
social and emotional problems are not ipso facto separable from the
learning process. Nor do we agree with the Seventh Circuit that a problem
resulting from a disability is separable from the learning process if
the problem is "not primarily educational." Dale M. v.
Bd. of Ed. of Bradley-Bourbonnais High School Dist. No. 307, 237
F.3d 813, 817 (7th Cir. 2001). If the problem prevents a disabled child
from receiving educational benefit, then it should not matter that the
problem is not cognitive in nature or that it causes the child even
more trouble outside the classroom than within it. What should control
our decision is not whether the problem itself is "educational"
or "non-educational," but whether it needs to be addressed
in order for the child to learn.

Moreover,
the record here does not permit the conclusion that A.C.'s behavior
problems are separable from the learning process. The IEE evaluator
made quite clear her judgment that A.C. will not receive educational
benefit unless her emotional and behavioral problems are dealt with.
The school psychologist from her old district, drawing on over two years
of that district's experiences with her, said that "[f]or any placement
to be successful, there will need to be the ability to exert sufficient
control while providing a therapeutic approach." Letter of 9/22/98
at 2, Joint Appendix (JA) at 355. An assessment by District 284 itself,
completed after A.C.'s brief period of attendance there, says that A.C.'s
behavioral and emotional problems must be addressed if she is to succeed
academically. Even the IEP at issue here states that A.C.'s "[g]rades
and credit completion suffer as a result of her explosive and oppositional
behavior," and that "[s]he needs a high degree of structure
and support, including immediate feedback with her behavior in order
to be successful." IEP of 3/19/99 at 2, JA at 357. This is not
a case where the correction of behavioral and emotional problems is
merely desirable in order to improve a student's performance: at the
time of her hearing, which occurred at the end of her tenth-grade year,
A.C. had completed only nine of the 32 credits required for graduation,
although she is of average intelligence and has no learning disability.
Both hearing officers found that A.C.'s truancy and disruptiveness had
substantially prevented her from receiving educational benefit. We see
nothing in the record that would support a finding to the contrary.

IV.

The remaining
question, then, is whether A.C. can reasonably be expected to make academic
progress outside of a residential program. If we regard this as an educational
question, there appears to be a consensus in the negative. A.C.'s treating
psychologist, her IEE evaluator, her old district's school psychologist,
her mother, and both state hearing officers all have reached the conclusion
that a residential placement is necessary in order for A.C. to get an
education. It is true that the evaluator testified that a day program
like the one recommended by the District "would educationally meet
[A.C.'s] needs," Hearing Transcript at 621, but it is clear from
the context that this remark referred only to the appropriateness of
the kind of instruction provided and not to the "related services."
Of all the educators whose views of the matter appear in the record,
the only one that does not recommend a residential placement is the
school district that is being asked to pay for it. This tends to show
that the District's recommended placement is not reasonably calculated
to enable A.C. to receive educational benefit, or, put otherwise, that
a residential placement is necessary to provide A.C. with special education
and related services.

The District
characterizes A.C.'s need for a residential placement as a need for
confinement, and argues that confinement is not a "related service"
it is required to provide. This view has some justification. The IEE
evaluator testified that the real issue is, you know, how can you get
her into an educational setting. When she is with her tutor and if she
shows up for her tutoring, she does her work and she is able to do her
work. There is no problem in doing her work. It is a question, really,
of getting her and a teacher in the same room and she getting to that
place and sitting down with that teacher. Hearing Transcript at 622-23.

In response
to questioning by the District's attorney, she further stated that her
recommendation of a residential placement was based on her judgment
that A.C.

will leave any treatment facility. She will run from any treatment facility
that is not [sic] where she's not confined in some way, because, ultimately,
any treatment facility is going to ask her to do things that she does
not want to do. And that is why she cannot be educated in a normal way,
because she is not - she just will not attend. Id. at 614.

The evaluator
also emphasized the benefit to A.C. of being prevented from using drugs
and from engaging in promiscuous sex. Id. at 618-19, 623.

These statements
should not be viewed in isolation, however. Taken as a whole, the IEE
evaluator's testimony suggests that a residential placement is necessary
in order to correct A.C.'s behavioral and emotional problems, not just
to keep her off the streets or to force her to sit down with a tutor.
Although tests reveal A.C. to be a shrewd problem solver, she fails
to exercise good judgment in her dealings with others because she lacks
empathy, defined as "the ability . . . to gauge behavior according
to what other people want from you." Hearing Transcript at 590.
This deficiency was confirmed, for example, by her Rorschach inkblot
test, in which she identified none of the shapes as human. Id.
at 592. When asked to give a prognosis for A.C., the evaluator said,
"I think she can improve . . . otherwise, you would just put her
in a confined situation without any treatment. Obviously, I think there
can be improvement." She testified that neither medication, individual
psychotherapy, nor family therapy was likely to do much good, but that
the residential aspect of a secure facility would probably have therapeutic
benefit:

the
fact is that at a residential treatment program, . . . the environment
is the therapy. And, you know, I think that it's a sort of a relearning
process that she needs. I mean, she needs socialization. . . . [S]he's
very narcissistic and does not have this sort of sense of what the other
feels or what the other is responding to.

And
so, you know, I think in a setting where that kind of emphasis is placed
in terms of the interactions with others - you know, sometimes peer
pressure can be very effective with individuals like her. If everybody
in her unit is pressuring her to behave in a certain way or her counselor
is pressuring her to behave and she has to alter her behavior under
those conditions. So that's what an environment, you know, is going
to do for her. Psychotherapy is not going to do that. Id. at
617-18.

It would
be one-sided, therefore, to say that mere confinement was the evaluator's
reason for recommending a residential placement. An independent and
sufficient reason for that recommendation was to provide treatment for
a psychological problem that has prevented A.C. from making acceptable
academic progress.

The District also argues that the IDEA's preference for mainstream placements
counsels against placing A.C. in a residential facility. Although our
cases have placed emphasis on this statutory preference, see, e.g.,
Springdale School Dist. No. 50 of Washington County v. Grace,
693 F.2d 41, 43 (8th Cir. 1982) (classing the preference among the "primary
directives" of the IDEA); S.D., 88 F.3d at 561 (calling
it a "strong preference"), we do not believe it is implicated
here. The statute requires mainstreaming only "to the maximum extent
appropriate," not to the maximum extent possible. 20 U.S.C. §
1412(5)(A). As the Supreme Court explained in School Committee of
the Town of Burlington, Mass. v. Dept. of Ed. of Mass., 471 U.S.
359, 373 (1985), in crafting this language "Congress was concerned
about the apparently widespread practice of relegating handicapped children
to private institutions or warehousing them in special classes."
Here, the District itself agrees that A.C. should be in an off-campus
institution where she can receive individualized instruction in a setting
designed for students with disabilities like hers. No one is proposing
a mainstream placement, or anything close to it. Moreover, the record
amply demonstrates that the decision to put A.C. into a residential
facility is not mere "warehousing" but a considered judgment
based on an assessment of her individual needs. The only question here
is whether she should go home at night or remain in a special institution
twenty-four hours a day. Because the preponderance of the evidence shows
that she will not receive educational benefit in the less restrictive
setting, the statute's preference is overcome here.

Finally,
the District argues that neither it nor this Court has the power to
order A.C. placed in a secure facility. That is beside the point. The
question before us here is not whether A.C. must attend such a facility,
but who should pay for it if she does.

V.

For the reasons stated, the judgment of the District Court is reversed,
and the cause remanded for the development of an appropriate remedy.
Fashioning an appropriate remedy will require findings of fact: for
example, it must be determined whether and when A.C. ceased to reside
in the District, and whether RMA was an appropriate residential placement
for her. We therefore remand the case for further proceedings consistent
with this opinion.

HANSEN,
Circuit Judge, concurring.

I agree
with the court's analysis in this case which concludes that the expert
testimony of record indicates that this is the very rare case where
a school district is obligated to pay for a residential treatment setting
as a related service in order to ensure that the child receives the
educational benefit that Congress has declared she is entitled to receive.
I write specially to emphasize that the district court's task on remand
of fashioning an appropriate remedy will be a difficult one. In my view,
the student is entitled to compensatory education but not to compensation
in the form of dollar damages.

The district
court has broad discretionary authority to "grant such relief as
the court determines is appropriate." 20 U.S.C. § 1415(i)(2)(B)(iii)
(1998 Supp. IV). The Supreme Court has stated that the remedy granted
must be one that is "appropriate" in light of the purpose
of the Act, which is to provide disabled "children with a free
appropriate public education which emphasizes special education and
related services designed to meet their unique needs." Sch.
Comm. of Burlington v. Dep't of Educ. of Mass., 471 U.S. 359, 369
(1985) (internal quotations omitted). The definition of related services
"encompasses those supportive services that 'may be required to
assist a child with a disability to benefit from special education.'"
Cedar
Rapids Cmty. Sch. Dist. v. Garret F., 526 U.S. 66, 73 (1999)
(quoting 20 U.S.C. § 1401(a)(17) (1994), renumbered as 20 U.S.C.
§ 1401(22) (Supp. IV 1998)). This language indicates that compensatory
educational services are an appropriate remedy. The statutory language
also permits the district court to authorize reimbursement to parents
who have actually incurred expenses in funding an appropriate special
education where the court determines that the school district's IEP
was inappropriate. Sch. Comm. of Burlington, 471 U.S. at 370.
The Supreme Court rejected an attempt to characterize this remedy as
"damages," noting that reimbursement merely requires the belated
payment of expenses that the school district should have paid in the
first instance. Id. at 370-71. We have specifically noted that appropriate
relief under the IDEA "includes compensatory education services
but excludes general and punitive damages." Birmingham
v. Omaha Sch. Dist., 220 F.3d 850, 856 (8th Cir. 2000) (internal
citations omitted).

In my opinion,
requiring the reimbursement of expenses already paid by the parents
to ensure that a child's education is at no cost to the parents is to
be distinguished from the granting of a windfall monetary award where
the parents never paid for the child's education. Here, the District
violated its obligation to provide a free appropriate education and
must provide an appropriate remedy. In this case, however, the District's
ability to provide compensatory education to fulfill its obligation
to the child has been somewhat frustrated by the child's removal of
herself from the school district. On the other hand, because the record
does not show that her parent spent any money to enroll her in a residential
treatment setting in order to obtain an appropriate education for her,
any monetary award cannot now be characterized as reimbursement and
would do nothing to fulfill the purpose of the Act. In my view, the
student is entitled to receive from the District at its expense the
residential setting educational opportunity she was entitled to but
did not receive, but only for the length of time she actually resided
within the school district. That opportunity may only exist in a setting
outside of the district. Neither her incorrigibility nor her parent's
inability to keep her in the school district or in the prior educational
placements designed to meet her emotional and behavioral problems should
be rewarded with money. Compensatory education is appropriate, but compensatory
dollar damages that may or may not be used to fund the education necessary
for her and that do not amount to reimbursement are not.